Features

With the New Year ahead, it’s a time to reflect on what we want from life – and what we want to give back. What makes a modern and humane Bar? Should it serve those it seeks to represent in a wider sense? Leslie Thomas QC sets out a convincing case

11KBW takes a break from the daily grind to cycle 1,000km from London to Paris and back again in the legal sporting event of the year – pitting chambers against law firms with camaraderie and charity in mind

In this issue we talk to Joanne Sefton, whose debut novel If They Knew hit the shelves on 15 November 2018. Joanne is an employment law specialist who completed pupillage and practised at Littleton Chambers for ten years, before moving to an in-house barrister role in order to spend more time on her writing and with her family. She is currently works for Mitchell Law, a boutique employment law firm based in Wiltshire.

The great virtue of this utterly compelling book is that Bill Clegg QC tells it as it is. Now, in the terrible chaos engulfing a great profession and on his way to the top. A life of a top criminal advocate within a profession he loves and adorns, with many high profile cases well summarised. Written for the interested non-lawyer, it has an excellent structure of career progression and specific cases combined together, chapter by chapter. It reads like the man: direct, clear, properly combative, reasonable and devoid of artificial rhetorical.

Missing are detailed pen portraits of fellow advocates, but that would have missed the point of a book which sets out unambiguously to demystify and to inform. It will serve equally well for any would-be lawyers, who, like the author and many of us, did not have any inside legal connections before we began. Absorb with joy the advice on how to appeal to a jury and remember it. Cherish equally how to win the trust of a judge.

So of course the author tackles the questions advocates are always asked and the byzantine ways leading us from eating dinners, slogging through pupillage, keeping heads above water in practice to eventually, for the chosen, Silk. His range of high profile cases include Jill Dando’s terrible killing, the case of Michael Stone, War Crimes in the Balkans, Private Lee Clegg and the Phone Hacking trial. But it is his analysis and strictures on the ‘Trying times for Legal Aid’ which will resonate with so many readers. The insider’s view, persuasive for its obvious truths. Just a glimpse:

‘If you believe, as I do that everyone is entitled to a fair trial, it follows that every individual must have access to proper legal representation regardless of their financial status. Legal aid was designed precisely to do just that… For decades, the system worked well… the barristers defending [legal aid defendants] earned a fee that was independently assessed to be fair and reasonable full. This is no longer the case.’

And then all the reasons: a decade of government cuts… for lawyers have fallen out of favour with the Treasury. And other woes: court staffing has been reduced and the budget for maintaining the courts has fallen. Stories of leaking roofs, toilets that do not work and heating and air conditioning systems that are broken.

‘There is a general feeling of squalor that you might expect in a developing country (but curiously do not find there, because respect for the rule of law demands that the courts are properly maintained). Here, in one of the largest economies in Europe, that does not appear to be the case.’

There is much more to justify his conclusion: it is absolutely no exaggeration to say that the profession is in crisis. So it is and we should shout that from the rooftops. And the more that leading lawyers beat that drum, the better chance of reform. What would Jeremy Bentham make of our shoddy slide into mediocrity by default and wilful underfunding!

Now all of that may just suggest a faint partiality by your reviewer. Perish the thought. My independent verdict is that I have never read a more accurate portrayal of our profession. Buy it now.

An Illustrated History of Gray’s InnAuthors: David Barnard and Timothy ShuttleworthPublisher: The Honourable Society of Gray’s InnISBN: 9781527219076

It is more than 70 years since Francis Cowper’s magisterial A Prospect of Gray’s Inn was published and more than 40 years since it was revised. Small wonder then that the Graya Board thought that the time had come for a fresh history which, by chronicling the Inn’s past and describing its present might assist in guaranteeing its future. Albeit it was only recently that the Inn’s traditional and exclusive role in calling its students to the Bar and conferring upon them in consequence the right to practice as barristers was enshrined in statute, they nonetheless need to be vigilant to fend off critics who question the justification for such mediaeval bodies to survive in modern times.

This handsomely produced volume takes the reader through the centuries at an educated canter. Replete with well-chosen illustrations it has the feel of a classic coffee table book, though it will no doubt be enjoyed by readers enjoying more stimulating liquid after a hard day in court or at the computer. Many of them may well be professional denizens of the Inn itself, which could not have happened before the 1970s, when for the first-time chambers were established in Gray’s outside the confines of the two Temples or Lincolns Inn. Nowadays the Inn can boast leading sets in the fields of commercial, insolvency, defamation, criminal, construction and public law, as well as human rights specialist Matrix, a creation of the new millennium.

Two of the three aptly named ‘pioneers’ whose names are specifically mentioned in this context were Richard Yorke QC and Douglas Frank QC who amalgamated two cohorts of commercial and planning lawyers into a single set at 4/5 Gray’s Inn Square through whose doors passed a diverse number of stars such as Konrad Schiemann (later a judge at the European Court of Justice), Appellate Judges such as David Keene, Alan Moses and Jeremy Sullivan and high profile advocates such as George Carman and Cherie Booth. The set also instigated associations (which continue to this day) with eminent academics such as Sir Wade and Gunter Treitel as well as with prominent lawyers from overseas jurisdictions. In the mid-nineties (when I was joint head) it was runner up three years in succession as Chambers of the Year, and under its present leadership and with scope for expansion is looking to scale the same heights a quarter of a century on.

The smallest of the Inns, Gray’s has always punched above its weight. On one glorious month in 2017 it boasted (though discreet pride is more its style) the first woman President of the Supreme Court, the Lord Chief Justice and the Master of the Rolls, and has just added the President of the Family Division to its number of high office-holders. The Inn of Bacon, Holt, Birkenhead, Atkin and Bingham fully deserves a commemorative work of this distinction.

Latest Cases

Disclosure and inspection of documents – Public interest immunity. The Competition and Markets Authority (the CMA) was granted various warrants under s 28 of the Competition Act 1998, concerning an investigation into suspected anti-competitive behaviours in relation to a number of pharmaceutical drugs. The defendant (Concordia) applied to have the warrant granted in respect of it discharged to the extent that it applied to certain medicines. Prior to that application being heard, the Chancery Division considered whether Concordia could have sight of certain confidential material submitted in support of the CMA's application or whether non-disclosure could be justified, as the CMA submitted, on the ground of public interest immunity.

Contract – Damages for breach. The appellant's appeal in respect of his claim for breach of contract against the respondent IVF clinic was dismissed. The clinic had implanted an embryo containing the appellant's gametes into his former partner (R), from whom the appellant had, by then, separated, without the appellant's consent (his signature having been forged). R had later given birth to a child. The Court of Appeal, Civil Division, ruled, among other things, that the legal policy which prevented recoverability of the cost of the upbringing of a healthy child tortious claims applied to the appellant's claim for breach of contract.

Patent – Infringement. The Patents Court considered the validity of three patents relating to pharmaceutical compositions for inhalation. The defendant company (Ventura) alleged that the claimant companies (together, GSK) had infringed the patents by the manufacture and sale of dry powder inhalers containing ingredients used to treat asthma and chronic obstructive pulmonary disease. The court held that GSK had not established that any of the patents were obvious over any of the cited prior art. Further, Vectura had not proved that GSK's process and products had infringed the patents. Furthermore, the patents were all invalid on the grounds of insufficiency. GSK's process, and hence the products obtained as a direct result of that process, were obvious over the prior art.

Contract – Construction. The declaration sought by the claimant employer, that, on the proper construction of practical completion within an amended JCT 2011 design and build contract, it was possible to achieve completion of one section of the works prior to the completion of the whole of the works, was granted. The Technology and Construction Court held that the interpretation of practical completion contended for on behalf of the defendant contractor, and accepted by the adjudicator, had not accorded with the ordinary meaning of the words used.

Family proceedings – Orders in family proceedings. The total amount which the husband had to pay was £4.05m following the wife's application for financial provision. The Family Court based that on an initial lump sum in respect of housing and capitalised maintenance of £3.65m, with an additional £400,000, being a little bit less than half of the total sum due on her litigation loan.